The Mediation Bill, 2021

Why in the News?

Recently, the Parliamentary Standing Committee recommended substantial changes to the Mediation Bill, aimed at institutionalising mediation and establishing the Mediation Council of India.

Need to promote mediation:

• • There is no standalone legislation for mediation in India.

• Statutes containing mediation provisions:

• • Code of Civil Procedure, 1908
  • The Arbitration and Conciliation Act, 1996
  • The Companies Act, 2013, 
  • The Commercial Courts Act, 2015
  • The Consumer Protection Act, 2019. 
• The Mediation and Conciliation Project Committee of the Supreme Court of India describes mediation as a tried and tested alternative for conflict resolution.
• India is a signatory to the Singapore Convention on Mediation (formally the United Nations Convention on International Settlement Agreements Resulting from Mediation).
• It is appropriate to enact a law governing domestic and international mediation.

Key features of the Bill:

• Aims: 

• • To promote, encourage, and facilitate mediation, especially institutional mediation
  •  To resolve disputes, commercial and otherwise.
• Mandatory Mediation: The Bill proposes mandatory mediation before litigation. 
• Rights of litigants: It safeguards the rights of litigants to approach competent adjudicatory forums/courts.
• Confidential and immunity: The mediation process will be confidential and immunity is provided against its disclosure in certain cases. 
• Legally enforceable: Agreements resulting from mediation will be binding and enforceable in the same manner as court judgments.  
• Mediation Council of India: The Bill establishes the Mediation Council of India and also provides for community mediation.

Concerns with the Bill:

• Pre-litigation mediation is mandatory for both parties before filing any suit or proceeding in a court, whether or not there is a mediation agreement between them.
• Parties who fail to attend pre-litigation mediation without a reasonable reason may incur a cost. 
• However, as per Article 21 of the Constitution, access to justice is a constitutional right which cannot be fettered or restricted. 
• Mediation should just be voluntary and making it otherwise would amount to denial of justice. 

• The Bill applies to international mediations only if they are conducted in India.  
  • It does not provide for enforcement of settlement agreements resulting from international mediation conducted outside India.

Conclusion: 

• In order to enable a faster resolution of disputes, the Bill should be implemented after discussion with stakeholders.